Spigelman CJ:
The law of statutory interpretation has
become the most important single
aspect of legal practice. Significant
areas of the law are determined entirely
by statute. No areas of the law has
escaped statutory modification
Who interprets?
Courts
Tribunals
Government departments and
agencies
What is interpreted?
Legislation
Delegated legislation
Administrative
pronouncements
Legislation
 Policy initiative
 Draft prepared
 Explanatory Memorandum
 2nd reading speech draft
 First Reading
 Second Reading – debate and amendments
 Third Reading – vote
 Process repeated in Upper House
 Royal Assent
http://www.peo.gov.au/images/library/00
07-Path-of-bill.jpg
Delegated Legislation
GENE TECHNOLOGY (LICENCE CHARGES) ACT 2000
TABLE OF PROVISIONS
Long Title
1. Short title
2. Commencement
3. Definition
4. GMO licence—annual charge
5. Regulations
GENE TECHNOLOGY (LICENCE
CHARGES) ACT 2000 - SECT 5
Regulations
The Governor-General may make regulations
prescribing matters:
(a) required or permitted by this Act to be
prescribed; or
(b) necessary or convenient to be prescribed
for carrying out or giving effect to this Act.
Administrative pronouncements
 E.g. – Merger guidelines
 Interpretation of s50 TPA
 http://www.accc.gov.au/content/item.phtml?itemI
d=809866&nodeId=7cfe08f3df2fe6090df7b6239c4
7d063&fn=Merger%20guidelines%202008.pdf
Merger factors: s50(3)
(3) Without limiting the matters that may be taken into account for the purposes
of subsections (1) and (2) in determining whether the acquisition would have
the effect, or be likely to have the effect, of substantially lessening competition
in a market, the following matters must be taken into account:
(a) the actual and potential level of import competition in the market;
(b) the height of barriers to entry to the market;
(c) the level of concentration in the market;
(d) the degree of countervailing power in the market;
(e) the likelihood that the acquisition would result in the acquirer
being able to significantly and sustainably increase prices or profit margins;
(f) the extent to which substitutes are available in the market or are
likely to be available in the market;
(g) the dynamic characteristics of the market, including growth,
innovation and product differentiation;
(h) the likelihood that the acquisition would result in the removal
from the market of a vigorous and effective competitor;
(i) the nature and extent of vertical integration in the market.
Merger guidelines: Nov 2008
Purpose of these guidelines
1.18. These guidelines provide an outline of the broad
analytical framework applied by the ACCC when
assessing whether a merger is likely to substantially
lessen competition under s. 50. These guidelines have
been developed by the ACCC in relation to its functions
under s. 50 and do not purport to represent the
analytical framework that would be applied by the
Tribunal in relation to its mergers functions.
1.19. These guidelines are designed to provide reliable, comprehensive and
detailed information that merger parties, the business community, their
advisers and the public can draw on to:
• assess the likely level of scrutiny a merger will receive from the ACCC—in
particular, guidance is provided on when merger parties should notify
the ACCC of a merger (the threshold for notification is outlined in
chapter 2)
• increase understanding of the application of s. 50
• assist in structuring (or restructuring) mergers to avoid raising
competition concerns
• identify the types of information that will assist the ACCC to reach a view
on how a merger is likely to affect competition—to make informed and
timely decisions, the ACCC relies on the cooperation of the merger
parties, customers, competitors, suppliers and any other persons or
bodies holding relevant information
• identify the ACCC’s broad approach to remedying possible anticompetitive mergers through undertakings (see appendix 3).
1.20. These guidelines do not have any
legal force in determining whether a
merger is likely to contravene the Act—
final determination of the issues is a
matter for the courts.
ATO website:
Public Rulings, Determinations and Bulletins
Public Rulings and Determinations set out the Commissioner's opinion as to the way in
which 'a tax law' applies to:
a person in relation to a class of arrangements;
a class of persons in relation to an arrangement; or
a class of persons in relation to a class of arrangements.
For more information see:
Taxation Ruling TR 2006/10 (concerning the public rulings system),
GST Ruling GSTR 1999/1 (concerning the GST Rulings system),
Product Ruling PR 2007/71 (concerning the Product Rulings system),
Class Ruling CR 2001/1 (concerning the Class Rulings system),
Self Managed Superannuation Funds Product Ruling SMSFPR 2009/1 (concerning the Self
Managed Superannuation Funds Product Rulings system) and
Law Administration Practice Statement PS LA 2008/3 (concerning provision of written
advice by the ATO).
Go to Public Rulings, Determinations and Bulletins
Legislative Determinations
Legislative Determinations are instruments issued by the
Commissioner (or delegate) pursuant to a particular provision of an
Act. Legislative Determinations, being a form of subordinate
legislation, are law. The Legal Database currently contains Legislative
Determinations relating to Excise, Goods and Services Tax, Income Tax
and the Pay As You Go system.
Go to Legislative Determinations
ATO Interpretative Decisions
An ATO Interpretative Decision (ATO ID) is a summary of a decision
on an interpretative issue and is indicative of the Commissioner's view
on the interpretation of the law on that particular issue. ATO IDs are
produced to assist ATO officers to apply the law consistently and
accurately to particular factual situations.
For more information see Law Administration Practice Statement PS
LA 2001/8
Go to ATO Interpretative Decisions
Courts and interpretation
Kirby J in Coleman v Power (2004) 209 ALR 182:
It is not the judicial obligation to put specifically to
parties…every rule of statutory construction relevant to
the performance of the judicial task….this court may
adopt a construction of legislation that has not been
argued by the parties, and a fortiori is not restricted to
the interpretative principles argued by their
representatives
Precedent
Gummow J in Brennan v Comcare (1994) 50 FCR 555 at 572-3:
The judicial technique involved in construing a statutory
text is different from that required in applying previous
decisions expounding the common law. In the latter class of
case, the task is to interpret the legal concepts which find
expression in the various language used in the relevant
judgements. The frequently repeated caution is against
construing the terms of those judgements as if they were the
words of a statute. The concern is not with the
ascertainment of the meaning and the application of
particular words used by previous judges, so much as with
gaining an understanding of the concepts to which
expression was sought to be given.
Ogden Industries Pty Ltd v Lucas[1970] AC 113
Per Lord Upjohn at 127:
It is quite clear that judicial statements as to the
construction and intention of an Act must never be
allowed to supplant or supersede its proper
construction and courts must beware of falling into the
error of treating the law to be that laid down by the
judge in construing the Act rather than found in the
words of the Act itself
Telstra Corp v Treloar (2000) 102 FCR 595
 Branson and Finkelstein JJ:
 The view which we prefer is that unless an error in construction
is patent, or has produced unintended and perhaps irrational
consequences not foreseen by the court that created the
precedent, the first decision should stand. … Accordingly, we
venture to suggest that it would be on a rare occasion that an
intermediate appellate court … will allow an issue concerning
the construction of a statute, past and closed and especially a
repealed statute, to be thrown open, producing as it clearly will,
uncertainty, disruption to the conduct of affairs, a sense of
grievance in those who may consequently receive treatment less
favourable than that received by others under the same statute
and additional cost and expense.
Types of legislation
 Public
 Private
 S73 Interpretation Act 1987 (NSW)
Types of legislation - Consolidation
of Acts
 Consolidating
 Reprinting/Incorporation
 Trade Practices Amendment Act (No 1) 2001
 http://www.austlii.edu.au/au/legis/cth/consol_act/tpaa1200125
6/sch1.html
 Compilations
 http://www.comlaw.gov.au/comlaw/management.nsf/lookupin
dexpagesbyid/IP200401339?OpenDocument
 Statute law revision Acts
Consolidation v Codification
 Consolidation: existing statute law
 Codification: existing statute and common law
 Codes v ‘codes’
 Companies code
 Corporations Act 2001
 http://www.austlii.edu.au/au/legis/cth/consol_
act/ca2001172/index.html#s3
Problems with Codes
 Competition Code
 Australian Consumer Law
 Constitution
 Interpretation of Application Scheme?
 e.g. Fair Trading Act 1987 (NSW) s 31
FAIR TRADING ACT 1987 - SECT 31
Interpretation of Australian Consumer Law 31
Interpretation of Australian Consumer Law
(1) The Acts Interpretation Act 1901 of the Commonwealth
applies as a law of this jurisdiction to the Australian
Consumer Law (NSW) .
(2) For the purposes of subsection (1), the Commonwealth
Act mentioned in that subsection applies as if: (a) the
statutory provisions in the Australian Consumer Law
(NSW) were a Commonwealth Act, and (b) the regulations
in the Australian Consumer Law (NSW) or instruments
under that Law were regulations or instruments under a
Commonwealth Act.
(3) The Interpretation Act 1987 of New South Wales does
not apply to: (a) the Australian Consumer Law (NSW) , or
(b) any instrument under that Law
STRUCTURE OF AN ACT
• Number
• Preamble
• Long Title
• Short Title
• Objects/ Purpose
clause
• Table of Contents
• Parts, Divisions
and Headings
• Schedules
Preamble
 Whereas the people of New South Wales, Victoria,
South Australia, Queensland, and Tasmania, humbly
relying on the blessing of Almighty God, have agreed
to unite in one indissoluble Federal Commonwealth
under the Crown of the United Kingdom of Great
Britain and Ireland, and under the Constitution
hereby established:
 And whereas it is expedient to provide for the
admission into the Commonwealth of other
Australasian Colonies and possessions of the Queen:
SYDNEY TURF CLUB ACT 1943
Long Title
An Act to constitute and incorporate a Sydney Turf Club
and to declare its objects, functions and powers; to
provide for the acquisition by that club of certain
racecourses and the equipment thereof; to provide for
the discontinuance of the licences of certain racecourses;
to provide for the establishment of a Racing
Compensation Fund in the Treasury; to amend the
Gaming and Betting Act 1912 and certain other Acts; and
for purposes connected therewith.

R v White (1899) 20 LR (NSW) 12
Short Title
PART 1 - PRELIMINARY
1 Name of Act and commencement
(1) This Act may be cited as the Sydney
Turf Club Act 1943 .
Objects clause
Competition and Consumer Act 2010- s 2
Object of this Act
The object of this Act is to enhance the
welfare of Australians through the
promotion of competition and fair trading
and provision for consumer protection.
Parts, Divisions and Subdivisions
PART IV--RESTRICTIVE TRADE PRACTICES
Division 1--Cartel conduct
Subdivision A--Introduction
Subdivision B--Offences etc
Subdivision C--Civil penalty provisions
Subdivision D—Exceptions
Division 2--Other provisions
Parts, Divisions and Subdivisions
 Contextual interpretation
 Re the Commercial Bank of Australia Ltd (1893) 19 VLR
333
 Role of headings
Civil Liability Act 2002 (NSW)
PART 1A - NEGLIGENCE
Division 1 - Preliminary
5. Definitions
5A. Application of Part
Division 2 - Duty of care
5B. General principles
5C. Other principles
Use of headings
ACTS INTERPRETATION ACT 1901 - SECT 13
Material that is part of an Act
(1) All material from and including the first section of an Act to the
end of:
(a) if there are no Schedules to the Act--the last section of the Act;
or
(b) if there are one or more Schedules to the Act--the last Schedule
to the Act;
is part of the Act.
(2) The following are also part of an Act:
(a) the long title of the Act;
(b) any Preamble to the Act;
(c) the enacting words for the Act;
(d) any heading to a Chapter, Part, Division or Subdivision
appearing before the first section of the Act.
Replaced:
Headings, schedules, marginal notes, footnotes and
endnotes
(1) The headings of the Parts Divisions and
Subdivisions into which any Act is divided shall be
deemed to be part of the Act.
(2) Every schedule to an Act shall be deemed to
form part thereof.
(3) No marginal note, footnote or endnote to an
Act, and no heading to a section of an Act, shall be taken
to be part of the Act.
Headings
PART V--CONSUMER PROTECTION
Division 1--Unfair practices
51AF. Part does not apply to financial services
51A. Interpretation
52. Misleading or deceptive conduct
(1) A corporation shall not, in trade or commerce, engage in
conduct that is misleading or deceptive or is likely to mislead
or deceive.
 Hornsby Building Information Centre Pty Ltd v Sydney Building
Information Centre Ltd [1978] HCA 11
Stephen J at [12]:
...I do not regard it as appropriate that the unambiguous words of s.
52 should be given some unnaturally confined meaning because of
the heading to Pt V. ... I would adopt what was said by Latham C.J. in
Silk Bros Pty. Ltd. v. State Electricity Commission (Vict.) [1943] HCA
2; (1943) 67 CLR 1, at p 16 concerning the use of headings in the
interpretation of statutes. His Honour said:
"The headings in a statute or in Regulations can be taken into
consideration in determining the meaning of a provision where that
provision is ambiguous, and may sometimes be of service in
determining the scope of a provision (see In re Commercial Bank of
Australia Ltd. (1893) 19 VLR 333, at p 375 ). 'But where the enacting
words are clear and unambiguous, the title, or headings, must give
way, and full effect must be given to the enactment' (Bennett v.
Minister for Public Works (N.S.W.) [1908] HCA 50; (1908) 7 CLR 372,
at p 383 , per Isaacs J.)."
Stephen J:
 13. To subject the clear and quite general words of s. 52 to some
limitation derived from the heading to Pt V is, I think, especially
inappropriate in the case of this particular legislation. The Act is
intricately drafted, some of its provisions being expressed in terms of
broad generalities, as is s. 52, others in elaborate detail. Each may be
seen to take the precise form it does because of the particular work
intended for it. That s. 52 (1) is intended to be a provision having a
broad reach is made clear by the express provision in s. 52 (2)
preserving its "generality" from any limitation which might be
thought to arise from the more specific provisions of succeeding
sections. It is also significant that the quasi-definitions of
"consumer" in s. 4 (3) appear to have little application to most of the
provisions of Div. 1 of Pt V; it is on Div. 2 that they principally
operate. To interpret the provisions of Div. 1 in the light of the quasidefinitions, applied, through this heading, to the entire Part, will be
to distort in numerous respects the otherwise clearly apparent
legislative pattern manifest in Pt V. (at p226)
Concrete Constructions v Nelson
[1990] HCA 17
 5. The general heading "Consumer Protection" at the
commencement of Pt V is part of the Act (Acts
Interpretation Act 1901 (Cth), s.13). It constitutes part
of the context within which the substantive provisions
of Pt V must be construed and should be taken into
consideration in determining the meaning of those
provisions in case of ambiguity. The heading does not,
however, control the permissible scope of the
substantive provisions of Pt V and cannot properly be
used to impose an unnaturally constricted meaning
upon the words of those substantive provisions (see
Hornsby Building Information Centre Pty. Ltd., at p
225; Parkdale, at p 202).
 As a matter of language, s.52 prohibits a corporation from
engaging in misleading or deceptive conduct "in trade or
commerce" regardless of whether the conduct is misleading to,
or deceptive of, a person in the capacity of a consumer. In these
circumstances, it is not permissible to give to the heading of Pt V
the effect of confining the general words of s.52 to cases
involving the protection of consumers alone. So to constrict the
provisions of s.52 would be to convert a general prohibition of
misleading or deceptive conduct by a corporation, be it
consumer or supplier, in trade or commerce, into a
discriminatory requirement that a corporate supplier of goods or
services should observe standards in its dealings with a corporate
consumer which the consumer itself was left free to disregard.
That being so, the general words of s.52 must be construed as
applying even-handedly to corporations involved in a transaction
or dealing with one another "in trade or commerce". So to say is
not, however, to deny the significance of the heading "Consumer
Protection" for the purposes of the present case. In particular, as
will appear, that heading is of importance in determining the
effect of the words "in trade or commerce" in s.52 (see Hornsby
Building Information Centre Pty. Ltd., at p 224).
Ragless v Prospect City Council [1922] SASR 299 at
311 per Murray CJ:
I think the rules [as to the use of headings] may be
stated thus:
If the language of the sections is clear, and is actually
inconsistent with the headings, the headings must give
way;
If the language of the sections is clear, but, although
more general, is not inconsistent with the headings, the
sections must be read subject to the headings;
If the language of the sections is doubtful or
ambiguous, the meaning which is consistent with the
headings must be adopted.
Explanatory memorandum
 ACTS INTERPRETATION AMENDMENT BILL 2011
 96. New section 13 would not prescribe how much
weight (if any) should be given to particular material
forming part of an Act in interpreting the Act. Of
course, primacy should normally be given to the
substantive provisions of an Act over headings and
explanatory notes in interpreting an Act.
The Section is the most important
part of an Act
Sections are sub-divided into:
SECTION
s1
SUB-SECTION
(2)
PARAGRAPH
(a)
SUB-PARAGRAPH
(v)
Elements of a section
 The elements of a section form a checklist – not a
shopping list.
 Unless it is drafted in the alternative, each element
must be satisfied.
 The sub-sections of each section are to be read
independently – unless the drafting clearly indicates
otherwise
Australian Consumer Law
- s 18
Misleading or deceptive conduct
(1) A person must not, in trade or commerce, engage in
conduct that is misleading or deceptive or is likely to
mislead or deceive.
Elements of s18(1)
• Person
• Trade or commerce
• Engage in conduct
• Misleading or deceptive
Elements exercise
Australian Consumer Law- s50
Harassment and coercion
(1) A person must not use physical force, or undue
harassment or coercion, in connection with:
(a) the supply or possible supply of goods or
services; or
(b) the payment for goods or services; or
(c) the sale or grant, or the possible sale or grant,
of an interest in land; or
(d) the payment for an interest in land.
CIVIL LIABILITY ACT 2002 - s 5L
(1) A person (
"the defendant") is not liable in
negligence for harm suffered by another
person ( "the plaintiff") as a result of the
materialisation of an obvious risk of a
dangerous recreational activity engaged in
by the plaintiff.
S47 CCA
 http://www.austlii.edu.au/au/legis/cth/consol_act/cac
a2010265/s47.html
Schedules
 http://parlinfo.aph.gov.au/parlInfo/download/legislati
on/bills/r4335_aspassed/toc_word/10074b01.docx;fileT
ype=application%2Fvnd.openxmlformatsofficedocument.wordprocessingml.document